Praseut Chanthasen v. Richard Ives

The opinion of the court was delivered by: Valerie Baker Fairbankunited States District Judge

O

ORDER SUMMARILY DISMISSING HABEAS PETITION AS DISGUISED § 2255 MOTION

The Court will dismiss this putative 28 U.S.C. § 2241 habeas petition summarily because the face of the petition, combined with judicially-noticeable information, indicates that it is an abusive, disguised motion under 28 U.S.C. § 2255. Petitioner asserts a challenge to his federal marijuana-growing conviction and/or sentence that may only be asserted pursuant to § 2255 in the court that tried him, namely the United States District Court for the Eastern District of California. His asserting such challenges here, having labeled them as a putative § 2241 petition, is obviously improper.

I. BACKGROUND

Petitioner Praseut Chanthasen is a federal prisoner housed in Lompoc, in this judicial district. On June 27, 2008, after a four-day trial before District Judge Lawrence J. O'Neill, a federal jury in the Eastern District of California convicted Petitioner and others on charges of growing large quantities of marijuana. See generally docket in United States v. Lawphachan, No. CR 06-0212 AWI (E.D. Cal.) (verdict is docket #147). Prior to his sentencing, Petitioner and the government extensively briefed Petitioner's motion for acquittal or a new trial, but Judge O'Neill denied that motion on December 19, 2008. On the same day, the court sentenced Petitioner to a lengthy prison term. Id. (docket #181).

Petitioner appealed, asserting insufficient evidence and a prejudicial failure by the prosecution to preserve a certain digital photograph. (Petitioner did not challenge his sentence.) The Ninth Circuit affirmed in an unpublished memorandum decision. See United States v. Chanthasen, 367 Fed.Appx. 796, No. 09-10001 (9th Cir. 2010).

Petitioner's petition here appears to rehash some of his arguments against his conviction, and to add new arguments, many of which newly attack his sentence.

II. DISCUSSION

28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief[.]" In light of this rule, the statute on its face appears to bar the present action. Section 2255 itself permits resort to a 28 U.S.C. § 2241 petition when a § 2255 motion is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255. This clause is sometimes referred to as the "escape hatch" to § 2255's exclusivity provision. Lorentsen, 223 F.3d at 953.

Only rarely is § 2255's escape hatch available. A § 2255 motion cannot and should not be viewed as "inadequate" merely because the sentencing court has denied relief on the merits. Id. Any contrary ruling would nullify the statute's gatekeeping provisions, and Congress then would have accomplished little in its attempts to limit federal collateral review in passing laws such as the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Triestman v. United States, 124 F.3d 361, 374-76 (2nd Cir. 1997) (discussing Congressional intent to narrow collateral attacks).

"Along with many of our sister circuits," the Ninth Circuit has explained, we have held that a § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an "unobstructed procedural shot" at presenting that claim.

Here, opening the "escape hatch" is unwarranted. Petitioner already has fully litigated two direct-appeal claims attacking his conviction. He did not include his current claims attacking his sentence, but he knew what his sentence was and certainly had the opportunity to have included such challenges at that time. Similarly, Petitioner has not moved in the trial court for § 2255 relief, although he certainly had the opportunity to do so. The mere fact that Petitioner has not succeeded in one or more such "procedural shots," or that he simply did not take those shots, does not somehow render the prior proceedings so "inadequate or ineffective" as to allow an "escape hatch" petition under § 2241.

III. CONCLUSION

For the foregoing reasons, the action is DISMISSED without prejudice to Petitioner's pursuit of relief in the Eastern District of California, the Court of Appeals for the Ninth Circuit or the United States Supreme Court.

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